Spencer v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: McCOOL, JUDGE.
• Docket Number: CR-2022-1213
• Decision Date: 28 June 2024
• Citation: Spencer v. State, CR-2022-1213 (Ala. Crim. App. Jun 28, 2024)
• Parties: Altonio Spencer v. State of Alabama

1

Altonio Spencer v. State of Alabama

No. CR-2022-1213

Alabama Court of Criminal Appeals

June 28, 2024

Appeal from Mobile Circuit Court (CC-18-287 and CC-18-288)

McCOOL, JUDGE.

Altonio Spencer appeals his convictions for pharmacy robbery, see § 13A-8-51, Ala. Code 1975; and first-degree robbery see § 13A-8-41, Ala. Code 1975. The trial court sentenced Spencer to life imprisonment without the possibility of parole for his pharmacy-robbery conviction and to 240 months' imprisonment for his first-degree-robbery conviction.

Facts and Procedural History

On June 21, 2017, Misty Morton was working as the store manager at a Walgreens drugstore in Mobile. The drugstore closed at 10:00 p.m., and by 10:30 p.m. Morton and another employee, Ivan Lockett, were walking out of the drugstore when an armed intruder forced them back inside at gunpoint. Once inside the drugstore, the armed intruder forced Morton to give him the money from a safe and then made a telephone call. Two other intruders entered the drugstore shortly thereafter, one of whom, according to Morton, was Spencer. The armed intruder then instructed Morton to open the pharmacy, but Morton told him that she did not have a key to the pharmacy. Spencer and the intruder who had entered the drugstore with him then "start[ed] trying to open [the pharmacy] with [a] crowbar and [a] hammer" while the armed intruder held Morton and Lockett at gunpoint. (R. 227.) When Spencer and his accomplice were unable to break into the pharmacy, the armed intruder told Lockett to "ram [his] body into" the door, and Lockett "kept running at it until he" managed to break into the pharmacy. (R. 228.) The three intruders then took "all of the medicine out of the cabinet" and placed it into a trash can, which they took with them when they fled the scene in a Honda automobile. (R 231.) During Morton's testimony, the State played several videos recorded by the surveillance cameras in the drugstore, and those videos show Spencer participating in the offenses. Those videos also reveal that Spencer was armed with a handgun during the offenses, though he was not the armed intruder who first entered the drugstore and held Morton and Lockett at gunpoint.

According to Morton, "there were tracking devices inside of the bottles" that the intruders took from the pharmacy (R. 235), and, shortly after the intruders left the drugstore, police officers with the Mobile Police Department were provided with tracking information that led them to a house in Mobile, where they found the Honda automobile in which the intruders had fled the scene. One person ran from the house as the officers approached, but he was quickly apprehended and told the officers that there were two other people inside the house. The officers then set up a perimeter around the house, and, when the two occupants of the house would not "voluntarily come out," "the SWAT team ... forced entry" and took the two occupants, including Spencer, into custody. (R. 196.)

Spencer was found "locked in a closet inside of [a] bedroom," where he "was sitting on top of" a "large trash bag full of narcotics." (R. 395.) In addition to those narcotics, the officers found "a lot" of other "narcotics and controlled substances" throughout the house (R. 251), including one bottle of "oxycodone" that contained "a tracker that had been put in there by Walgreens." (R. 279.) The officers also found approximately $6,000 in United States currency, a "money wrapper" on which was printed the name "Walgreens" (R. 315), and two handguns, one of which looked similar to the handgun Spencer had in his possession while inside the drugstore.

Chris Savage was employed as the pharmacy's asset-protection manager at the time of trial, but he was not employed by the pharmacy at the time of the offenses. Savage testified as follows regarding the tracking devices used by the pharmacy:

"Q. Can you explain the mechanics about how the tracker works in a pill bottle?

"A. Inside of the pill bottle they have a tracker that sits on top of a magnet. When it pulls off the magnet, it triggers that as an alert to the corporate system where they track that. That begins the process of tracking that device.

"Q. When it begins tracking the device, does it generate any information or data?

"A. Yes.

"Q. In what form?

"A. Basically it's a spreadsheet is what we will normally get. About every 10 or 15 seconds it will ping it using wifi. It tracks its location using longitude and latitude, time.

"Q. Who is that information sent to?

"A. In this case it will be -- Blue Tracks is the vendor that had that particular tracker. Then it's sent to our security operations center. They work in conjunction with local law enforcement where the tracker was activated.

"Q. The company that owns the tracker immediately sent it over to the Walgreens security team and then they relayed it to police?

"A. Yes.

"Q. When that information is generated, is it compiled into a report?

"A. Yes.

"Q. Is that done every time?

"A. It's always -- it's an electronic report. It's always being generated.

"Q. So that happens automatically; there is not some human being sitting behind a computer typing that information in?

"A. From the moment they activate the tracker.

"Q. Is that record kept in the regular course of business of Walgreens?

"A. Yes."

(R. 352-353.) The State then proffered the tracking report for admission into evidence, and the trial court admitted it over Spencer's objection.

Savage also testified, over Spencer's objection, as to the contents of a "DEA report" that had been created at the pharmacy following the offenses:

"Q. I want to talk about [the DEA report]. What is it that is reported on that list?

"A. Generally when there is a loss of a C II drug, a Schedule II drug --

"Q. Before you go on, what does the term 'Schedule II' drug mean?

"A. It's a narcotic of some sort that is highly regulated from the government.

"Q. C II, is that a law that lists what certain drugs are?

"A. Yes.

"Q. So this is listed in law as a controlled substance?

"A. Yes.

"Q. You said there was a list that generates C II drugs?

"A. Yes.

"Q. What is that list?

"A. This is a DEA 106. It's a common practice for the pharmacies when they take an inventory of those C II drugs, if there is missing drugs they have to report it up on the 106 report to the government, the pharmacy, DEA. If drugs are stolen it's the same thing -- lost or stolen -- they have to generate that report which means if there is an event where a robbery occurred or a loss occurred, immediately they have to inventory those drugs in question and then report up any missing.

"Q. The way they do that, do they keep an inventory every time that a certain drug is sold or used at the store?

"A. It's a perpetual tracking type of device. Sold. Received. Then they will do periodic counts, or smart counts at Walgreens. When they do counts they keep a perpetual inventory electronically.

"Q. You are saying that at almost all times on a regular basis there is a list of what drugs are supposed to be at Walgreens?

"A. Yes.

"Q. Then after drugs are taken they compare what is left to the list of what is supposed to be there?

"A. Yes.

"Q. That's how the list of what was taken was generated?

"A. That's correct.

''. . . .

"Q. Were you able to make a comparison to any of the drugs that were recovered?

"A. Yes.

''. . . .

"Q. What were you comparing?

"A. The drugs listed on the DEA 106 to the pill bottles that were there.

"Q. What did that comparison show you?

"A. They were right on the money.

"Q. When you say 'right on the money,' what does that mean?

"A. As far as the drugs that were listed on the DEA 106 were basically present on the table there."

(R. 357-62.) Although the trial court allowed Savage to provide that testimony, it refused to admit the DEA report into evidence because it found that the State had not timely provided the report to Spencer.

The jury found Spencer guilty of pharmacy robbery and first-degree robbery. During the sentencing hearing, the State presented the trial court with certified copies of Spencer's four prior convictions, which are for the offenses of first-degree receipt of stolen property, see § 13A-8-17, Ala. Code 1975; second-degree assault, see § 13A-6-21, Ala. Code 1975; breaking and entering a vehicle, see § 13A-8-11(b), Ala. Code 1975; and unlawful possession of a firearm, see § 13A-11-72, Ala. Code 1975. The State then argued that, given those four convictions, the Habitual Felony Offender Act ("the HFOA"), see § 13A-5-9, Ala. Code 1975, required the trial court to sentence Spencer to either life imprisonment without the possibility of parole or life imprisonment for his pharmacy-robbery conviction. The State noted, though, that § 13A-8-52, Ala. Code 1975, provides that any person who is convicted of pharmacy robbery is not eligible for parole. Thus, the State argued that, in this case, the trial court was required to sentence Spencer to life imprisonment without the possibility of parole for his pharmacy-robbery conviction. The trial court agreed with the State and imposed that sentence, finding that it did not "have the leeway to give [Spencer] any leniency" and was "required by law, given [Spencer's] past history, to impose a sentence of life in prison without the possibility of parole." (R. 593.) The trial court sentenced Spencer to 240 months' imprisonment for his first-degree-robbery conviction.

Discussion

Spencer raises several claims on appeal that, he says, entitle him to relief.

I.

Spencer argues that the trial court erred "in multiple evidentiary rulings." (Spencer's brief, p. 24.) We address each evidentiary ruling in turn, keeping in mind that "'[t]he question of admissibility of evidence is generally left to the...